Mirvac Homes (NSW) Pty Limited v Noakes

Procedural History

1. As indicated, the proceedings were brought in the Tribunal on 10 and 13 December 2021. The respondent did not vacate the Wilson Avenue and Lane Cove Road properties by 30 August 2021 when the final extension of time had passed. She was warned to do so immediately by letter dated 5 October 2021 - Exhibit BM-1 p 50, but did not vacate either property, as required.
2. The respondent was warned again to vacate the properties by letter dated 10 November 2021 from the applicant's solicitors - see Exhibit BM-1 p 52, but failed to do so.
3. On 17 December 2021, the Tribunal made orders in respect of the written material on which the applicant intended to rely. The applicant complied with those orders. The proceedings were listed on 18 January 2022 for a directions hearing.
4. The respondent did not appear at the directions hearing on 18 January 2022. Nor did she indicate to the Tribunal or to the applicant prior to 18 January 2022 that the date of the directions hearing was unsuitable or otherwise that she would have difficulty appearing on that occasion. In fact, the Tribunal received an adjournment application on the morning of 18 January 2022. Other than seeking an adjournment for a period of up to 3 weeks, the respondent did not state her position in respect of the proceedings; i.e. whether she acceded to the application for orders under the AT Act (including possession of the properties), or whether she was advocating an alternative position.
5. At the directions hearing. I made these orders, directions and notations: 1. By Determination of member, on 18 January 2022 the hearing was adjourned to a date to be fixed by the Divisional Registrar. 2. These orders and directions are made in file no COM 21/50582 (relating to the Lane Cove Road property) and file no COM 21/50720 (relating to the Wilson Avenue property). Both files are to be listed for hearing together and evidence in one proceeding is to be evidence in the other proceeding. 3. Leave is granted to the applicant to be represented by Australian legal practitioners in both proceedings. 4. The respondent did not appear at today's directions hearing and was not available when contacted by telephone. At 7:37 am today the Tribunal received from the respondent an adjournment application with supporting medical certificate. The Tribunal determined to adjourn both proceedings for a formal hearing and made procedural directions to enable both files to proceed to a hearing on all issues in dispute in an orderly way. No further adjournments of the proceedings will be granted other than in exceptional circumstances. 5. The Tribunal notes that the applicant relies on the statements of evidence attached to its solicitors' letter of 17 January 2022 as its evidence in chief in support of its case for orders of the Tribunal. 6. On or before 16 February 2022, the respondent is to give to the applicant and the Tribunal, in person or by post, all documents (including statements of evidence) on which she intends to rely at the hearing in opposition to the applicant's case for orders of the Tribunal. 7. On or before 23 February 2022 the applicant may file and serve any evidence strictly in reply to the respondent's documents. 8. The parties are encouraged to have settlement discussions prior to the next hearing. The Tribunal may make consent orders in the absence of the parties on receipt of signed terms of agreement.
6. Following the directions hearing, and consistently with direction 8, the applicant by its solicitors sent the Open Offer to the respondent via its letter dated 7 February 2022 - as indicated, a copy of the Open Offer is the attachment to the Applicant's Submissions on Costs dated 16 March 2022.
7. Relevantly, the Open Offer: 1. Indicated that the applicant was unaware of the basis of any opposition by the respondent to the orders sought by it under the AT Act in the Wilson Avenue proceeding and in the Lane Cove Road proceeding; 2. Set out the reasons why there was no proper basis at law for the respondent to continue to resist the orders sought by the applicant; 3. Made an offer to the respondent to resolve the proceedings, pursuant to which: * The respondent was to vacate the Wilson Avenue and Lane Cove Road properties within 14 days; * The applicant would advise the Tribunal that the proceedings had been resolved after 7 days of the respondent vacating the properties; and * In exchange, the applicant would not seek any order for its legal costs.
8. The Open Offer in the letter of 7 February 2022 was expressed to be available for acceptance by the respondent up until 9 February 2022. The respondent did not accept the Open Offer; nor respond to the Open Offer in any other way. The applicant's preparation for a contested hearing on all issues in the proceedings thus continued.
9. The respondent did not file and serve any documents in opposition to the applicant's case for orders of the Tribunal. The respondent's documents were due by 16 February 2022, as required under direction 6 made on 18 January 2022. The respondent did not provide a reason for her failure to comply with direction 6.
10. The proceedings were specially fixed for hearing before me on 3 March 2022. The respondent appeared by telephone on that occasion and indicated for the first time that she would not be opposing the substantive relief sought by the applicant. The respondent then consented to these orders: 1. These orders and directions are made in the proceedings constituted by file no. COM 21/50720 (the application relating to the property at Wilson Avenue Ingleside NSW) and by file no. COM 21/50582 (the application relating to the property at Lane Cove Road Ingleside NSW). 2. By consent, order that pursuant to s 21(1)(i) of the Agricultural Tenancies Act 1990 (NSW) (AT Act), the respondent give to the applicant on or by 5:00 pm 14 March 2022, vacant possession of each of the following properties: (1) Lot 4, 46 Lane Cove Road, Ingleside NSW 2101 (being Lot 4 in Deposited Plan 1044346); and (2) 7 Wilson Avenue, Ingleside NSW 2101 (being Lot 2 in Deposited Plan 24637). 3. By consent, order that pursuant to s 21(1)(g) of the AT Act, on or before giving vacant possession in accordance with order 2, the respondent: (1) remove any property (including animals), rubbish, motor vehicles, caravans and/or materials brought onto either of the properties since 14 January 2020; (2) make good damage to the properties caused or suffered by the respondent during the term of occupation; and (3) leave the properties in a neat and tidy state, having regard to the condition of each property at the commencement of the Occupation Licence affecting each property.
11. Accordingly, the remaining matter for determination in the proceedings is the applicant's application for costs.

The relevant legal principles as to costs

1. Section 60 of the NCAT Act provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. "Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]
3. In considering whether "special circumstances" exist for the purposes of s 60(2) of the NCAT Act: 1. Each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]. 2. The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]. 3. Mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46]; 4. Where special circumstances are found to exist, the Tribunal has discretion to exercise in deciding what, if any, order should be made. The use of "may" in the opening words of s 60(3) indicates that there remains a discretion not to award costs even if the factors are present, to see if they point to the existence of "special circumstances" in the situation under consideration: Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250 at [17]. 5. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
4. The discretion to award costs generally is broad and unfettered, save that it must be exercised on a principled and judicial basis, avoiding arbitrariness and serving the need for consistency: see, for example, Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24], and also "according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy": Williams v Lewer [1974] 2 NSWLR 91 at [95]. The Tribunal's power is 'unfettered' in the manner described in Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327 at [36]: A power conferred in these terms is "unfettered" in the sense that the Tribunal may make such order as it thinks appropriate, so long as it acts in accordance with the subject matter, scope and purpose of the power. In relation to the award of costs in litigation, the accepted purpose is where costs are awarded in favour of one party, to compensate that party for the expense incurred in respect of the litigation.
5. An award of costs is made, not for the benefit of a losing party, but for the successful party. In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, McHugh J (in dissent but with the tacit agreement on this issue with other members of the Court) said at [67]: The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended by, the unsuccessful party the successful party would not have incurred the expenses which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
6. Furthermore, the situation which arises in the proceedings is different from most costs' applications as there was no hearing on the merits; the respondent consented to orders for possession and removal of her personal property on the day of the hearing.
7. In such a situation, reference to the case of Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 (Lai Qin) is essential. In that case, McHugh J stated at 186 CLR 624 - 625 (footnotes excluded): In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.
8. The Tribunal may also determine by whom and to what extent costs are to be paid, and may order costs on either the ordinary basis or an indemnity basis: s 60(4) of the NCAT Act.

The parties' submissions as to costs

1. In this instance, the applicant seeks costs on the ordinary basis only.
2. The applicant submitted there are four (4) principal reasons why there are "special circumstances" within s 60 of the NCAT Act warranting a costs' order in its favour and why the Tribunal should exercise its discretion as to costs: 1. The respondent failed to appear before the Tribunal at the directions hearing on 18 January 2022, filed no evidence in opposition to the applicant's case for orders of the Tribunal despite having been directed to do so, and did not meaningfully participate in the proceedings until the final hearing on 3 March 2022; 2. The respondent's position had no tenable basis in fact or law, such that the applicant's costs of bringing and maintaining the proceedings, ought to have been, but was not, avoided by proper concession by the respondent; 3. The respondent unreasonably refused the Open Offer from the applicant to resolve the proceedings, the terms of which substantially reflected the relief obtained by the applicant at the final hearing and as consented to by the respondent; 4. The terms of the Licence Agreements granted to the applicant the contractual entitlement to recover the applicant's costs associated with enforcing the Agreements, which it is submitted that the Tribunal ought to uphold in exercising the discretion as to costs.
3. The respondent argued that she had attempted to engage in mediation with the applicant; but that the applicant was "not at all interested": see her email of 16 March 2022. In essence, the respondent contended that the presumption in s 60(1) of the NCAT Act prevails in both proceedings such that the appropriate order is for each party is to bear their own costs of the proceedings. She further submitted that there are no "special circumstances" warranting a departure from the presumption that each party should pay their own costs; nor is there a case to justify the making of an order for costs in the exercise of the Tribunal's discretion pursuant to s 60(4) of the NCAT Act.

Whether there are special circumstances warranting an award of costs within s 60(2) of the NCAT Act

1. I am satisfied that there are "special circumstances" within subparagraphs (b), (c), (f) and (g) of s 60(3) of the NCAT Act.
2. I do not consider there is any evidentiary foundation for the respondent's contention that the applicant would not engage in mediation; or that the applicant was not interested in resolving matters with the applicant before or after commencing the proceedings in the Tribunal.
3. In respect of the period leading up to the commencement of the proceedings, despite the expiry of the fixed terms (and extensions) of the Licence Agreements and the applicant's various demands, the respondent refused to provide vacant possession of the Wilson Avenue and Lane Cove Road properties. I am satisfied that the applicant was entitled to pursue its rights to possession and had no choice other than the commencement of the proceedings on 10 and 13 December 2021.
4. After the commencement of the proceedings, I find that the applicant was entitled to assume, in the absence of any contrary indication from the respondent that the underlying matters in the proceedings, including the applicant's rights to possession, were contested, and that the specially fixed hearing on 3 March 2022 would go ahead. Up until the start of the hearing the respondent did nothing to disabuse the applicant from that view (e.g. by responding to the Open Offer) and preparations for a contested hearing were undertaken accordingly by the applicant's legal representatives.
5. Had the respondent provided an earlier indication to the Tribunal and the applicant as to her real position, I consider that the substantial costs of the applicant in preparing for a contested hearing on 3 March 2022 could have been avoided. In maintaining a silence throughout the course of the proceedings (i.e. up until the start of the final hearing), in failing to appear before the Tribunal prior to the final hearing, in electing to serve no written materials to put a case in opposition to the applicant, in choosing not to respond to the Open Offer, and otherwise acting in breach of the Tribunal's orders and directions, I find that the respondent increased the costs and prolonged unreasonably the completion of the proceedings.
6. In my view, the respondent's concession (i.e. that she would allow vacant possession and did not object to the other substantive relief sought by the applicant) ought to have been made prior to the commencement of the final hearing of the proceedings and certainly well before the applicant had expended further time and legal costs in preparing for a contested hearing. I do not think that this is a case where the capitulation of the respondent at trial was brought about by circumstances beyond her control; rather this is a case in which the respondent's capitulation at the hearing, after lengthy preparation and the incurring of significant costs by the applicant, is a matter which constitutes "special circumstances" warranting an order for costs: see Rodny v Stricke [2020] NSWCATAP 20 at [112] in the context of a withdrawal of an application less than a week before a three day hearing, which in my opinion, is not dissimilar to the circumstances of this case, where there was capitulation by the respondent at the commencement of a one day hearing.
7. I am also satisfied that the applicant's entitlement to vacant possession of both properties on the basis of the expiry of the Licence Agreements was unassailable. The applicant's evidence in the proceedings included a documentary trail by which the respondent was repeatedly warned to vacate the properties by 30 August 2021, and informed that no further extension would be permitted. Moreover, the applicant's evidence included the contemporaneous acknowledgment by the respondent as to the required date for vacating the properties.
8. The applicant's evidence was not challenged or contradicted by the respondent, who provided no responsive evidence at all. In the circumstances, I find that the respondent's opposition to the applicant's proceedings was untenable in fact and in law from the outset and for that reason also constitutes "special circumstances" (within subsection 60(3)(c)) warranting an order for costs.
9. As regards the application of subsections 60(3)(f) and (g) to the circumstances of this case, the "duty" referred to in (f) is that imposed by s 36(3) of the NCAT Act, which obliges parties to proceedings to cooperate with the Tribunal in order to give effect to the guiding principle of the NCAT Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Given the respondent's concession at the start of the final hearing was substantially in and to the effect of the Open Offer which had been made by the applicant's solicitors only a matter of some three weeks earlier, the respondent's failure to accept the Open Offer, or at least to respond to the Offer and engage in meaningful settlement negotiations with the applicant (as direction 8 made on 18 January 2022 had encouraged the respondent to do), was plainly unreasonable. In my determination, such unreasonable conduct of the respondent constitutes "special circumstances" (within subsection 60(3)(f)), or is a relevant "other matter" (within subsection 60(3)(g)) to support a finding of "special circumstances", warranting an order for costs.

Where there are special circumstances, whether the Tribunal's discretion should be exercised to award costs

1. Although in the events which occurred, there was, in fact, no contested hearing of the proceedings, having regard to the considerations already referred to in these Reasons, I am satisfied the respondent acted so unreasonably that this is an appropriate case within the principles enunciated in Lai Qin, to award costs to the applicant. The purpose of a costs order is not to punish one party but to indemnify the other party where fairness dictates it should not have had to incur its costs. For the reasons referred to, this is a case where the applicant had to incur substantial legal costs to prepare its case in both proceedings for a contested hearing.
2. Additionally, the applicant has a contractual entitlement to its costs. Clause 8.1(c) of each of the Licence Agreements requires the respondent to pay the applicant's reasonable costs of and incidental to "any proceedings brought by [the applicant] to enforce the compliance by the [respondent] with the terms of this Licence that apply to the [respondent]".
3. The existence of that right is significant, as it reflects the contractual acceptance by the respondent of her obligation to pay the applicant's costs of proceedings brought to enforce the terms of the Licence Agreements affecting the properties, including clause 15 (End of Term).
4. The discretion as to costs is ordinarily exercised to reflect such contractual right: see, for example, Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 at [14], and there is no reason why that should not occur in this case.

Conclusion and Order

1. For the foregoing reasons, I allow the applicant's costs' application. The Tribunal's order is: The respondent is to pay the applicant's costs of the proceedings constituted by File Nos COM 21/50582 and COM 21/50720 on the ordinary basis as agreed or as assessed in accordance with the applicable costs assessment legislation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2022